Muslims in the West, case of Switzerland

by
Sami A. Aldeeb Abu-Sahlieh

2007
Christian Arab of Palestinian origin and Swiss citizenship, holding a doctorate in law
from the University of Fribourg, and a diploma in political sciences from the Graduate
Institute of International Studies of Geneva. Responsible for Arab and Islamic law in
the Swiss Institute of Comparative Law in Lausanne. Invited Professor at the Faculties
of Law of Aix-en-Provence and Palermo. Last book: Introduction à la société
musulmane: fondements, sources et principes, Eyrolles, Paris, 2005. Email:
saldeeb@bluewin.ch. Some of his writings in: http://www.sami-aldeeb.com/. The
opinions expressed in this article engage only their author.

Introduction...................................................................................................................................................3

I. Main reasons behind the confrontation...................................................................................................4

A) Different concepts of law.......................................................................................................................4
1) Islamic concept of law: God-made laws.............................................................................................4
B) Western concept of law: human-made laws......................................................................................5
2) Division of society on the internal and external level............................................................................6
A) Religious division of society..............................................................................................................6
B) Western territorial/national division of the society............................................................................9

II. The conflicting norms in family and inheritance law.........................................................................10

1) Celebration of the marriage.................................................................................................................10
A) Islamic norms...................................................................................................................................10
B) Swiss norms.....................................................................................................................................11
2) Religious obstacles to the marriage.....................................................................................................12
A) Islamic norms...................................................................................................................................12
B) Swiss norms.....................................................................................................................................14
3) Temporary or enjoyment marriage......................................................................................................17
A) Islamic norms...................................................................................................................................17
B) Swiss norms.....................................................................................................................................18
4) Polygamy..............................................................................................................................................18
A) Islamic norms...................................................................................................................................18
B) Swiss norms.....................................................................................................................................19
5) Dissolution of the marriage..................................................................................................................21
A) Islamic norms...................................................................................................................................21
B) Swiss norms.....................................................................................................................................22
6) Authority of the husband over his wife.................................................................................................25
A) Islamic norms...................................................................................................................................25
B) Swiss norms.....................................................................................................................................26
7) Relations between parents and children..............................................................................................27
A) Islamic norms...................................................................................................................................27
B) Swiss norms.....................................................................................................................................28
8) Matrimonial regime and economic relations.......................................................................................31
A) Islamic norms...................................................................................................................................31
B) Swiss norms.....................................................................................................................................32

1
 9) Inheritance law.....................................................................................................................................33
A) Islamic norms...................................................................................................................................33
B) Swiss norms.....................................................................................................................................34

III. How to resolve the problem of Islamic law.......................................................................................35

1) Answers inside the Arab countries.......................................................................................................35
2) Answers inside the western countries...................................................................................................37

Appendix: Model contract for mixed marriage.......................................................................................41

1) Celebration of the marriage.................................................................................................................41
2) Religious freedom of spouses...............................................................................................................42
3) Fidelity and monogamy........................................................................................................................42
4) Children................................................................................................................................................42
5) Economic relations...............................................................................................................................42
6) Sartorial norms, work and travel.........................................................................................................43
7) Dissolution of the marriage..................................................................................................................43
8) Inheritance............................................................................................................................................43
9) Death and funeral ceremony................................................................................................................44
10) Modification of the present contract..................................................................................................44

2
Introduction
An English driver, who comes to Switzerland, will, without any
hesitation, drive his car immediately on the right side. The same can be
said about a Swiss driver who goes to Great-Britain. This smooth way of
resolving conflicting norms between different cultures is not adopted in all
fields. To take an extreme and sensitive example, some Africans coming
from countries where girls are circumcized are reluctant to abide to the
laws of Western countries where such a custom is forbidden1.
Muslims living in western countries, whether born there or coming
from Muslim countries are confronted with western laws in different
fields: food, the veil, mixed schools and swimming pools, mosque
building, cemeteries, freedom of expression, etc. Such problems are
increasing with the present political tensions and the growth of the number
of Muslims in these countries, a growth which encourages them to claim
what they consider as being their rights.
This paper is limited geographically to Switzerland and materially to
the areas of family and inheritance law. Our purpose is to see
- the main reasons behind the confrontation;
- the conflicting norms in the sphere of family and inheritance and how
they are resolved by Swiss law and courts;
- how to resolve the problem of Islamic law2.
In the appendix, I reproduce a model contract for mixed marriages between
Swiss and Muslims proposed by the Swiss Institute of Comparative law.
To give an idea about the Muslim population of Switzerland, below is their
number according to the official census in the last four decades:
Year Muslims Total population
1970 16,353 6,269,783
1980 56,625 6,365,960

I don't differentiate between male and female circumcision, and condemn both practices as a
violation of physical integrity of non-consenting persons without medical reasons (see my book:
Male and female circumcision among Jews, Christians and Muslims: religious, medical, social
and legal debate, Shangri-La Publications, Warren Center, PA 19951, USA, 2001).
2
For
more details, see Aldeeb Abu-Sahlieh, Sami A.: Les Musulmans en Occident entre droits et
devoirs, L'Harmattan, Paris, 2002; Aldeeb Abu-Sahlieh, Sami A.: Muslims in the West caught
between rights and duties: redefining the separation of Church and State, Shangri-La
Publications, Warren Center (USA), 2002; Aldeeb, Sami et bonomi, Andrea (ed.): ‘Le droit
musulman de la famille et des successions à l'épreuve des ordres juridiques occidentaux,’
Schulthess, Zürich, 1999; Aldeeb Abu-Sahlieh, Sami A.: Le droit international privé suisse face
aux systèmes des pays arabes et musulmans, in: Revue suisse de droit international et de droit
européen, 2nd year, 1/1992, p. 33-73.

3
1990 152,217 6,873,687
2000 310,807 7,204,0553
According to the figures of 2000, foreigners who are without papers (sans-
papiers), whose number is estimated at about 300,0004, 200,000 of them
being Muslims5, have to be added.
If this estimation is correct, then in 2000 there were 510,807 Muslims
living in Switzerland. They constitute the third largest religious community
in Switzerland, and their numbers have nearly tripled every ten years in the
last four decades. Taking into consideration migratory fluxes, elevated
birth-rate among Muslims compared to non-Muslims, and mixed marriages
with children almost automatically becoming Muslims, nobody can say
with certainty to what extent this tendency will continue. But the present
figures are influencing the public debate and may in the long run have
implications on the Swiss legal and political system according to the
principle: "Quantity makes quality".
I. Main reasons behind the confrontation
There are mainly two reasons behind the confrontation with Swiss
norms: different concepts of law, and the religious division of society.
A) Different concepts of law
1) Islamic concept of law: God-made laws
For the Jewish believer, the Bible imposes itself as a legal code to follow at
all times and in all places. One reads:
You must diligently observe everything that I command you; do not add
to it or take anything from it (Deuteronomy 13:1).
The revealed things belong to us and to our children forever, to observe
all the words of this law (Deuteronomy 29:28).
It is a statute forever throughout your generations in all your settlements
(Leviticus 23:14).
Quoting these verses, Maimonides (d.1204) writes: "It is clearly stated in
the Torah that it contains the Law which stands for ever, that may not be
changed, and nothing may be taken from it or added to it". According to
Maimonides, if one pretends the opposite, "he shall die by hanging"1. This
punishment is also foreseen for anyone who "uproots any of our verbal
3
http://www.bfs.admin.ch/bfs/portal/fr/index/news/publikationen.Document.50517.pdf#search=%2
2statistiques%20musulmans%20310'807%22, p. 110.
4

http://www.alencontre.org/page/page2/03/13-3.html
5

http://www.largeur.com/expDebat.asp?pagePos=4&debID=2275
1
Maimonides, Moses: The Book of Knowledge, transl. Russell and Weinberg, Royal College of
Physicians, Edinburgh, 1981, pp..23-24.

4
traditions or says that God had charged him to interpret the Law in such
and such a way, he is a false prophet and is to be hanged even though he
gives a sign"2.
One finds this same concept among Muslims for whom the Qur’an, -
the literal word of God -, and the Tradition of Muhammad (Sunna) -
gathered in different compilations - constitute the first two sources of all
law. From these two sources, classic Muslim jurists developed a legal
system called shari'a (literally: the way). All Muslims must submit to it.
The Qur’an says in this respect:
Those who do not rule in accordance with God's revelations are
disbelievers ... unjust, ... wicked (Sura 5:44, 45, 47).
No believing man or believing woman, if God and His messenger issue
any command, has any choice regarding that command. Anyone who
disobeys God and His messenger has gone far astray (Sura 33:36).
Muhammad Mitwalli Al-Sha'rawi (d. 1998), a religious leader and
Egyptian politician, explained that revelation is called upon to decide
equivocal questions, thus freeing mankind of the anguish of solving a
difficult case by discussion, or by exhaustive repetition of experiences. The
Muslim does not have to look outside Islam for solutions to any problem,
since Islam offers absolute eternal and good solutions3. He adds:
“If I were the person responsible for this country or the person charged
to apply God's law, I would give a delay of one year to anyone who
rejects Islam, granting him the right to say that he is no longer a
Muslim. Then I would dispense to him of the application of Islamic
law, condemning him to death as apostate.”4
B) Western concept of law: human-made laws
The Judeo-Islamic concept of the law as emanating from God is
different from the concept of the law in Christianized western countries, a
concept based on the idea of the people's sovereignty that decides the laws
governing it. This concept is the result of a fierce struggle to separate
church and state. But it has its seeds already in Christ's attitude towards the
law. Contrary to the Ancient Testament and to the Qur’an, the Gospel
remains mainly a moral book. Jesus was not a jurist; he never exercized a
political function. He refused to deal with the law as it is clear from the
adultery case (John 8:3-11) and the inheritance case (Luke 12:13-15). As
there are no legal norms in the Gospel, it was easy for the Christianized
countries to create their own laws, first as a decision of a dictator, and later

2
ibid., p.25.
3
Al-Sha'rawi, Muhammad Mitwalli: Qadaya islamiyya, Dar al-shuruq, Beirut and Cairo, 1977,
pp. 35-39.
4
ibid., p. 28-29.

5
as a popular, democratic decision. It is interesting to mention the definition
of law given in the 2nd century by the Roman Jurisconsult Gaius: "Law is
what the people prescribes and establishes" (Lex est quod populus iubet
atque constituit)5. This is the concept which prevails in Switzerland where
laws are made by parliament without the interference of religion.
2) Division of society on the internal and external level
A) Religious division of society
According to the Qur’anic perception, God sent different prophets to
transmit his law to humanity. Although Muhammad considers himself as
the last of these prophets and his message constitutes the ultimate
achievement of the previous messages, he admits that the followers of
these prophets, called Ahl al-kitab (People of the Book) or Dhimmis
(protected), can live in the Islamic state in the hope they will convert to
Islam. These are Jews, Christians, Sabians, and Zoroastrians, to whom one
could add Samaritans (see Suras 2:62; 9:29; 22:17). Despite the ambiguous
position towards them, often qualified as unbelievers (kafir), the Qur’an
orders that they be treated correctly (see Suras 16:125 and 29:46) and
rejects recourse to force to convert them: "There shall be no compulsion in
religion" (Sura 2:256), even though conversion is encouraged by indirect
means. The cohabitation between Muslims and People of the Book is not
on equal terms, but of the dominant and the dominated. The People of the
Book have to pay a tribute, in a state of humiliation (Sura 9:29), and to
submit to discriminatory norms, notably concerning family law.
While waiting for the ‘voluntary’ conversion of non-Muslims, the
Islamic State allows these communities to apply their own religious laws
and to have their own jurisdictions (Sura 5:44 and 46). This multi-
confessional legal system persists in some Arab countries until today with
more or less no change. But on the whole, this approach tends to lead to
unification. So in both Jordan and Syria, the non-Muslim religious
communities apply their religious laws concerning family law, with the
exception of inheritance law, and have their own religious courts, whereas
Egypt suppressed these religious courts.
The aforementioned tolerance is refused to apostates, polytheists and
groups which are not expressly mentioned in the Qur’an. The Qur’an says:
"There shall be no compulsion in religion" (Sura 2:256). Although
adherents of the recognized groups can remain in their religion, they are
encouraged to become Muslims. But a Muslim, either born of a Muslim
family or a convert, does not have the right to leave the Islamic religion. It
is therefore a uni-directional religious freedom. The Qur’an does not
foresee a precise punishment against an apostate although it repeatedly

5
Gaius: Institutes, Les Belles Lettres, Paris, 1965, I.3.

6
uses the term kufr (disbelief)6, or the term ridda (abjuration)7. Only
punishments in the next life are foreseen, if one excepts verse Sura 9:74,
that speaks of "painful retribution in this life and in the Hereafter", without
making specifications. Narratives of Muhammad are more explicit:
One that changes his religion, kill him8.
It is not permitted to attempt to the life of the Muslim except in the
three following cases: disbelief after faith, adultery after marriage and
homicide without motive9.
On the basis of Qur’anic verses and Narratives of Muhammad, classic
jurists foresee the death penalty for an apostate, after having granted him a
delay of reflection for three days. If apostasy concerns a woman, some
jurists recommend putting her in jail until her death, or her return to
Islam10. It is necessary to add measures of civil order: the marriage of the
apostate is dissolved, his children are removed, his inheritance is opened
and he is deprived of inheritance. Collective apostasy is related to war. The
fate reserved for apostates is thus worse than that reserved for an enemy,
no truce being permitted for apostates11.
It seems that Muhammad, in the beginning, wanted to make some
concessions to polytheists. One passage of the Qur’an, recorded by Al-
Tabari, recognized three of their divinities: Al-Lat, Al-Uzzah and Manat.
But Muhammad denounced this passage as revealed by Satan (that is the
episode which inspired Salman Rushdie's Satanic Verses). Although this
passage disappeared from the Qur’an, traces remain that confirm a
provocative polemic (Sura 53:19-23). Muhammad admitted the possibility
of a pact with polytheists (Sura 9:3-4). But it was also denounced (Sura
9:7-11) and polytheists were summoned, in conformity with the verse of
the sword (Sura 9:5), either to convert or undergo war until death.
New religious groups, which are not mentioned in the Qur’an, are
also rejected. This is the case of the Baha'is. The first adepts of this group,
6
See
Suras 2:217 and 47:25-27.
7
See
Suras 2:208; 3:86-90, 177; 4:137; 9:66, 74, 16:106-109.
8
Al-
Bukhari (d. 870): Sahih Al-Bukhari, CD Al-'alamiyyah, Beyrouth, 1991-1996, narratives 2794 and
6411; Al-Tirmidhi (d. 892): Jami' Al-Tirmidhi, CD Al-'alamiyyah, Beyrouth, 1991-1996, narrative
1378; Al-Nasa'i (d. 915): Sunan Al-Nasa'i, CD Al-'alamiyyah, Beyrouth, 1991-1996, narratives
3991 and 3992.
9

Ahmad Ibn-Hanbal (d. 855): Musnad Ahmad, CD Al-'alamiyyah, Beyrouth, 1991-1996, narratives
23169 and 24518.
10

Aldeeb Abu-Sahlieh, Sami A.: L'impact de la religion sur l'ordre juridique, cas de l'Égypte, non-
musulmans en pays d'islam, Éditions universitaires, Fribourg, 1979, p. 60-63.
11

See Aldeeb Abu-Sahlieh, Sami A.: ‘Le délit d'apostasie aujourd'hui et ses conséquences en droit
arabe et musulman’, in: Islamochristiana (Rome), vol. 20, 1994, p. 93-116

7
which was created in 1863, were Muslims who abandoned their religion,
and therefore they were considered to be apostates. Although the majority
of Baha'is today are not of Muslim origin, Muslim countries still refuse to
recognize them.
Beside the aforementioned internal division, there is an external
division. Classic Muslim jurists consider all regions under Muslim
domination as the Land of Islam (Dar al-islam), whether or not all
inhabitants are Muslims. On the other side of the border is the Land of War
(Dar al-harb), often called the Land of Disbelief (Dar al-kufr) that, some
day, should come under Muslim domination, and its inhabitants convert to
Islam. The Land of War can benefit from a treaty of peace (ahd), becoming
thus a Land of Treaty (Dar al-ahd).
The Qur’an12, the Sunna and classical as well as some modern
Muslim authors urge Muslims living in the Dar al-harb to leave it and to
immigrate to the Dar al-islam. The purpose of this migration is to protect
them from persecution, to weaken the infidel community and to engage
them in the effort of war of the Muslim community. They are opposed to
the emigration of Muslims to the Dar al-harb, unless there is a necessity.
A guide to Muslims living in non-Muslim countries insists on the fact that
Muslims should not stay there unless necessary. As soon as the necessity
vanishes, Muslims should go back to Muslim countries13. Those who stay
in non-Muslim countries should convert non-Muslims to Islam as an act of
repentance for such sojourn among infidels14. In any case, Muslims should
observe the norms dictated by their religion15. There is also an opposition
to obtaining the nationality of non-Muslim countries because this implies
the acceptance of the application of non-Islamic norms. Muslim authors
request from non-Muslim countries that Islamic law be applied to their co-
religionists, even to those who have the nationality of these countries, in
the same way that Muslim countries apply Christian or Jewish laws to
Christians and Jews living in their territories16. Such claims are also
expressed by Muslim immigrants themselves17.

12

Suras 4:97-98, 4:100; 9:20; 2:218; 8:72, 74 and 75; 8:20; 16:110.
13
Dalil al-muslim fi bilad al-ghurba, Dar al-ta‘aruf lil-matbu‘at, Beirut, 1990, pp.63-66.
14
ibid., p.44.
15
See Aldeeb Abu-Sahlieh, Sami. A.: Les Musulmans face aux droits de l'homme, Religion & droit
& politique, étude et documents, Winkler, Bochum, 1994, p. 392-394.
16
Riad, Fouad: ‘Pour un code européen de droit musulman’, in: Le Statut personnel des musulmans,
droit comparé et droit international privé, sous la direction de Jean-Yves Carler et Michel
Verwilghen, Brussels, 1992, pp.380-382; Salamah, Ahmad 'Abd-al-Karim: Mabadi' al-qanun al-
duwali al-islami al-muqaran, Dar al-nahda al-'arabiyya, Cairo, 1989, p.172.
17
Cesari, Jocelyne: Etre musulman en France, associations, militants et mosquées, Karthala, Paris
and Iremam, Aix-en-Provence, 1994, pp.40 and 43. See also Aldeeb Abu-Sahlieh: La migration
dans la conception musulmane, in: Oriente moderno, July-december 1994, pp.249-255 and
pp.261-265.

8
 Al-Jaza'iri, the preacher at the Prophet's Mosque in Medina,
recommends the creation of a commission of three religious scientists in
every country of immigration. This commission’s goal is to solve conflicts
between immigrants in order to avoid having to address to non-Muslim
courts; to conclude and dissolve their marriages; to share their inheritance
according to a will established in accordance with Islamic law. Al-Jaza'iri
believes these measures, among others, will prevent Muslims from
dissolving into the unbelieving and atheistic Western society18.
Muslims consider Islamic adherence more important than national
adherence. This concept has implications for conflicts of law. The
Egyptian civil code prescribes the application of the national law of a
person in the field of family and inheritance law (articles 12-17).
Nevertheless, in the case of a Muslim French citizen, who even only
recently converted to Islam, Egyptian courts apply Islamic law in these two
fields. And so he will be able to marry four wives and in case of death, his
daughter will receive half of what is attributed to his son in inheritance.19
B) Western territorial/national division of the society
Traditionally Christian, Switzerland is today a multi-confessional
country with numerous sects. It passed through periods of conflict between
Catholics and Protestants that threatened its territorial unity. The
Constitution of 1874 endeavoured to curtail the religious communities by
confiscating their power concerning the civil register (article 53 par. 1),
marriage (article 54), jurisdiction (article 58 par. 2) and cemeteries (article
53 par. 2), by guaranteeing freedom of religion and worship (article 49), by
assuring the maintenance of public order and confessional peace between
various religious communities and non-involvement of ecclesiastical
authorities in citizens' and state's rights (article 50 par. 2). As Switzerland
is a secular state, religious communities have no legislative function there.
Although the Catholic Church in Switzerland has religious courts, their
decisions are not enforceable.
The new Swiss Constitution of 1998 is based on the idea that
Switzerland has surpassed the religious conflicts that the old Constitution
tried to remedy. Commenting on the article on freedom of conscience and
worship, the message of the Swiss Federal Council optimistically states
that the new Constitution "puts emphasis henceforth on individual
religious freedom rather than on guaranteeing religious peace, which is no
longer a menace as in the past"20. For this reason, it guarantees various
18
Al-
Jaza'iri, Abu-Bakr Jabir: I'lam al-anam bi-hukm al-hijra fil-islam, Rasa'il Al-Jaza'iri, Maktabat
Linah, Damanhur, 3rd edition, 1995, pp.726-729.
19
On Egypt, see Aldeeb Abu-Sahlieh: L'impact de la religion, op. cit., p. 189; Morocco, see Manaf,
Abdelouahed: Problèmes du couple mixte face au droit et à la société (cas franco-marocain),
Imprimerie Najah el jedida, Casablanca, 1990, p. 156.
20

9
rights without lingering on obstacles in realizing these rights, nor in
evoking the jurisdiction of the Church or the question of the cemeteries.
Article 72 par. 1, specifies that the regulation of the relationship between
Church and State is a cantonal matter. Par. 2 adds: "The Confederation and
the cantons may, within the framework of their powers, take measures to
maintain public peace between the members of the various religious
communities". It omits, wrongly, the question of the "encroachments by
religious authorities on the rights of citizens and the state", of which
speaks article 50, par. 2 of the 1874 Constitution.
If the relations between Catholics, Protestants and the state became
more cordial, Switzerland must now face newcomers on the religious scene
such as the sects, whose danger was clear after the massacres perpetrated
in October 1994, in December 1995 and in March 1997 in three countries:
Switzerland, Canada and France, by the Order of the Solar Temple,
founded in Geneva in 1984. These three massacres caused the death of 74
people, 19 of them being Swiss. There is also the Muslim community
living in Switzerland or cases implying Muslims living abroad which
represent a challenge to Swiss law and courts as we will see regarding
family and inheritance law.
II. The conflicting norms in family and inheritance law
1) Celebration of the marriage
A) Islamic norms
In most Muslim countries, a religious authority or a civil authority
with religious connotation generally celebrates the marriage. Even though
these countries insist more and more on the necessity to write down the
marriage in a state register, they still admit today the so-called customary
marriage which is established in the presence of two witnesses, as long as
it is not contested on behalf of the two spouses. This situation is the result
of the classic Islamic law, which does not prescribe an official form for the
celebration of marriage. The customary marriage is becoming a social
curse in a country such as Egypt where students resort to it secretly
because of economic difficulties that prevent them from contracting a
normal marriage. These marriages are formed and dissolved without any
control on behalf of the state or the family; they imply social insecurity for
the women. Some Swiss ladies, in search of sexual adventures, have
already fallen into this trap during their travels in Egypt. Egyptian men
insist that a customary marriage is necessary if they want to be together
without police intervention.

Message relatif à une nouvelle constitution fédérale, November 20, 1996, p.157.

10
B) Swiss norms
In Switzerland, marriage is a legal and binding institution. The
celebration of marriage is the exclusive prerogative of the civil status
officers, whatever the religion or citizenship of the partners.
It is forbidden to any foreign diplomatic or consular representative in
Switzerland to celebrate marriage, even for their citizens1. Furthermore: "a
religious solemnization of the marriage can only take place after the
solemnization before the civil status officer" (article 97 par. 3 CCS). This
religious solemnization is an optional formality with no legal
consequences.
If the spouses get married in Switzerland before an imam, without
having concluded the civil marriage beforehand, Swiss law does not
recognize such a marriage, which can have some unpleasant consequences,
notably for the woman abandoned by her husband2. On the other hand, the
imam exposes himself to penal sanctions3 and his residence permit may be
withdrawn. This situation brought the Federal Office of Civil Status to
address a circular letter on July 9th, 1999 to more than 120 Muslim
communities in Switzerland and to the cantonal authorities of surveillance
concerning civil status, in which it is stated: "During these last months, our
Office has been informed repeatedly of violations of Swiss law by the fact
that religious personnel, including imams, proceeded to the celebration of
marriages". The circular adds:
“According to the law currently in force since 1874 only the marriage
celebrated in Switzerland by the civil status officers is valid. A religious
blessing can take place only after the celebration of the civil marriage.
These norms are also valid for foreign nationals submitted to a religious
marriage according to their national law. […]. The respect of these
norms by religious personnel responsible of the communities is
imperative. In case of violation, they can be punished [...]. The spouses
must also expect annoyances. Even though a marriage accomplished in
this manner had to be recognized in the State of origin, in Switzerland
they will always be considered as not married. If the woman gave birth
to a child, the filiation would only be established between the child and
the mother and not her partner. The newborn will receive the family
name of the mother. The father must recognize the child expressly in
order to create a link of filiation. In addition of the financial

1
Note dated 8.2.1995 from the Swiss Federal Department of Foreign Affairs sent to the diplomatic
and consular representations in Switzerland.
2
In France, some Imams have married a second wife through a religious ceremony (Gozlan,
Martine: L'islam et la République: des musulmans de France contre l'intégrisme, Belfond, Paris,
1994, pp.111-117).
3
Articles 271, 287 and 292 of the Penal Code.

11
 inconveniences (no right to allowance for family and children, etc.)
there can be problems related to foreigners' police (residence permit).”
Concerning a customary marriage concluded between a Swiss woman
and a Muslim man in Egypt, there has, until now, no court decision been
issued relating to its validity, but I have been consulted several times on it.
I generally advise Swiss women not to proceed with any registration of this
marriage at the Swiss Embassy or authorities, not to take the "customary
husband" into Switzerland, who may invoke his marriage at the Swiss
embassy or authorities, and to cut all relations with him. In this way, the
marriage remains without any effect. I also advise them not to announce to
him their next visit to Egypt because he may denounce her to the police for
polyandry if he finds her with another man.
Although Swiss law admits the marriage to be celebrated abroad, it is
not yet the case for all Muslim countries. Thus, Morocco does not
recognize the marriage involving one or two Moroccan partners celebrated
in Switzerland before the civil status officer. Therefore, the embassy of this
country proceeds with a new celebration in its locality, in spite of the fact
that Switzerland does not recognize such prerogatives for an Embassy.
2) Religious obstacles to the marriage
A) Islamic norms
Islamic law recognizes obstacles to a marriage because of religion.
The norms concerning this matter can be summarized as follows:
- Sunnis permit the marriage of a Muslim with a non-Muslim
monotheist (Jewish or Christian). A Buddhist that wants to marry a
Muslim must convert to Islam or another monotheist religion
(Judaism or Christianity) before the marriage. The non-Muslim
monotheist woman can keep her faith while marrying a Muslim
Sunni, but he should not hide his wish that such a marriage will lead
her to convert to Islam4. Even in the absence of pressure, the woman
will feel practically constrained to become Muslim if she does not
want to be penalized in inheritance law and the care of the children.
The marriage of a Sunni with a non-Muslim woman, although
permitted, remains frowned upon, notably if the woman is foreign. A
book, used for education in Egyptian public schools, expressly warns
Muslim youngsters against this kind of marriage. There is the fear that
a non-Muslim woman will become a spy for her country5. Sheik Al-
Ghazali (d. 1996), a renowned Egyptian author, says that one cannot
qualify Christians and Jews of Europe and America as People of the
4
See Abu-Zahrah, Muhammad: Al-ahwal al-shakhsiyya, qism al-zawag, Cairo, 2nd edition, 1950,
p. 113-114; Badran, Badran Abu-al-Aynayn: Al-ilaqat al-ijtima'iyya bayn al-muslimin wa-ghayr
al-muslimin, Beirut, 1980, p. 66-77.
5
Al-Sanhouri, Muhammad Ahmad Faraj: Al-usrah fil-tashri al-islami, Wazarat al-tarbiyah wal-
ta'lim, Cairo, 1987, p. 29-34 (textbook taught in the eleventh year).

12
 Book since the Bible and the Gospel have lost any power over them.
According to him, the religion of these Christians and Jews is limited
to a dominical holiday, a Christmas feast, anger against Islam and
insults against Muhammad. In the past, he says, Muslims were
allowed to marry a woman from the People of the Book because she
could care for his house and educate his children according to God's
teachings. This is impossible today in a society where wine flows like
a stream and sex is without limit.6
- The Shi’a permit a marriage of a Muslim man only with a Muslim
woman. If a Muslim marries a Christian woman, she must convert to
Islam first, otherwise the marriage is not recognized.
- A Muslim woman can only marry a Muslim man. A non-Muslim man,
whatever his religion is, that wants to marry a Muslim woman, must
convert to Islam beforehand. One example is the case of the French
philosopher Roger Garaudy, who converted to Islam and married a
Muslim woman from the Al-Husayni family of Jerusalem. As no one
can abandon Islam, the Muslim woman cannot convert to her
husband's religion.
- If a non-Muslim woman married to a non-Muslim husband becomes
Muslim, her marriage is dissolved, except if her husband accepts to
follow her in her new religion.
- A person who abandons Islam cannot contract to a marriage, being
either punished to death or confinement to life, or at least being
considered dead. If the apostasy happens after the marriage, it is
dissolved. If a Christian converts to Islam to marry a Muslim woman,
and comes back to his religion of origin thereafter, he is considered as
an apostate. Therefore, his marriage is dissolved immediately. The
same happens to a Muslim husband who adopts positions judged to be
contrary to the Islamic religion.
These restrictions, which exist in all family laws of the Arab
countries, are based on two Qur’anic verses (Suras 2:221 and 60:10) as
well as on a truncated passage of the Qur’an: "God will never permit the
disbelievers to prevail over the believers" (Sura 4:141). Muhammad said in
the same sense: "Islam dominates and will never be dominated". These
passages are to be understood also physically: a non-Muslim man cannot
go over a Muslim woman.
Badran, law professor at the University of Alexandria and the Arab
University of Beirut, recommends the death penalty against the non-
Muslim man who marries a Muslim woman. This would be, according to
6
Al-Ghazali, Muhammad: Qadaya al-mar'ah bayn al-taqalid al-rakidah wal-wafida, Cairo and
Beirut, 4th edition, 1992, p. 203-204. See also Al-Jaza'iri, Muhammad Ibn Abd-al-Karim: Zawag
al-muslim bi-ghayr al-muslima wa zawag al-muslima bi-ghayr al-muslim fi mizan al-islam,
[Cairo], 2nd edition, 1993, p. 31 -32.

13
him, the most efficient means to impede non-Muslims from attempting to
dishonour Islam and Muslims7.
Let us finish here with the position of King Hassan II of Morocco. In
the French emission “À l'heure de vérité” (Antenne 2, 17 December 1989),
he said:
“What I think about mixed marriages is very clear; it is really the
calculation of the most improbable probabilities. For one succeeding,
there are a hundred which fail. I think that it is preferable to let things
go as they are, without being neither for, nor against; but at least the
environment should be considered, it should be... We speak at the
present time of environment, but the environment is much more
important: there is the historical environment, there is the environment
of authenticity, there is the environment in general and the continental,
linguistic, religious environment.”8
B) Swiss norms
Article 54 par. 2 aCst9 stipulated: "The right to marry may not be
limited for religious or economic reasons …". Article 14 nCst10 says: "The
rights to marriage and family are guaranteed". Although it is not as precise
as the former one, this article expresses the same idea. Therefore, the
religious obstacle to marriage foreseen by Islamic law is not admissible in
Switzerland. A Muslim woman can marry a non-Muslim man in
Switzerland. However, in some traditional communities, she may risk
kidnapping, or even being killed by her parents and her co-religionists. She
can never return to her country, and if she does in company of her
husband, she is immediately separated from him and both may risk their
lives. In November of 1996, a Christian Swiss man married a Muslim
Tunisian woman in Switzerland. Her two brothers kidnapped her and
threatened her husband with a weapon. The police, who freed the woman,
stopped them. But the husband and his wife are afraid as she has three
other brothers11. Once the kidnappers were let out of prison, the spouses
began to be afraid. They changed domicile repeatedly, refused to
communicate their telephone number and were counselled by a
psychiatrist.
As noted, Sunni Islamic law allows a non-Muslim woman to marry a
Muslim man without necessarily changing her religion, if she adheres to a
monotheist religion (Jewish or Christian). Despite that, the wife is invited
to convert to Islam, with more or less insistence, when the spouses contract
7
Badran: Al-ilaqat al-ijtima'iyya, op. cit., p. 88.
8
Quoted by Immigration et nationalité, quelles réponses? Under the direction of Jacques Trémolet
de Villers, Dominique Martin Morin, Paris, 1990, p. 91-22.
9
Ancient Swiss Constitution of 1874, effective until December 31st, 1999.
10
New Swiss Constitution of 1999, effective since January 1st, 2000.
11
24 Heures, 13.11.1996.

14
a religious marriage before a Muslim religious authority or a consulate of a
Muslim country after the civil marriage. According to testimonies, an
Islamic centre operating in Switzerland delays the religious ceremony
continually until the non-Muslim woman accepts to convert to Islam. In a
concrete case, a Christian girl, whose father is a Muslim converted to
Christianity, contacted the Islamic Centre of Lausanne to arrange a
possible religious celebration of her marriage with a Muslim man. The
woman who welcomed her, a Swiss convert to Islam, explained to her that
as daughter of an apostate, she cannot marry a Muslim man unless she
converts to Islam. Having known that his daughter was projecting a
marriage with a Muslim, the father began to have nightmares, fearing for
his life in Switzerland. He insisted that his daughter never give her family
address because fundamentalist Muslims could kill him.
To avoid these problems, many Swiss men ostensibly convert to
Islam, often without realizing the legal consequences of their actions.
Indeed, they cannot return to their original religion. If they do, they risk
undergoing the aforementioned consequences. Muslim society does not
admit the right of mistake in this matter.
Some wonder what the sense of a conversion to Islam is, if the
Muslim authorities know that it is merely a formality. In fact, if a non-
Muslim converts to Islam, even though it is only for show, his children will
inevitably be Muslims according to Islamic law and will forget why their
father had converted; they do not have the right to change their religion at
any time of their life.
In France, Sheikh Soheib Bencheikh, Mufti of Marseille, tries to find
a solution to this problem by advancing arguments used before him by the
Egyptian thinker Muhammad Ahmad Khalaf-Allah (d. 1997), that he does
not quote12. For him, neither the Qur’an, nor the Narratives of Muhammad
forbid the marriage of a Muslim woman with a Christian or a Jewish man.
In Islamic law, everything that is not expressly forbidden, is permitted. He
notes that because of this taboo, a lot of girls leave Islam to marry
Christians13.
This enlightened, liberal position is not shared by the Muslim
community in Switzerland or by persons responsible for this community.
In a symposium organized in Bern on November 26th, 1998, I asked Hafid
Ouardiri, spokesman of the Islamic Cultural Foundation of Geneva, if the
Mosque of Geneva was ready to declare that a Muslim woman has the
right to marry a non-Muslim man.14 He reacted violently and said that such
a declaration will never be made. I put the same question to Tariq
12
On this thinker, see Aldeeb Abu-Sahlieh: Les musulmans face aux droits de l'homme, op. cit.,
pp.134-136.
13
Gozlan: L'islam et la République, op. cit., pp.125-129.
14

15
Ramadan during a conference that took place in Lausanne on June 9th,
1999.15 He answered likewise, saying that Swiss law does not oblige a
Muslim girl to marry a non-Muslim man. In fact, the problem is not to
oblige a Muslim girl to marry a non-Muslim, but not to stop her from
doing it because of threats from her family or her religious community. Far
from condemning the prohibition of the marriage of a Muslim woman with
a non-Muslim man, Tariq Ramadan tries to justify it. He writes:
The question of mixed marriage for the Muslim is to be considered
under the realm of family philosophy as translated in the teaching of
Islam. The principle, in marriage, is equality of beings and
complementary roles and functions.
The man has the duty to provide for the family's needs and, in this
sense, he has the responsibility to maintain the home. The woman has
the right not to provide for material needs: it is a right, this is not a duty
(as some Muslims present it sometimes), and nothing prevents a woman
from working. In the family, there is, in Islam, the idea of the woman's
right that can put her, on the financial level, in a more or less relative
dependence situation.
This situation explains, at the level of the general philosophy, why,
in Islam, a Muslim man can marry a woman of the People of the Book,
Christian or Jewish, since it is a duty for him to respect his wife's faith
and to provide for her needs. The inverse is not possible; a Muslim
woman cannot marry a man of another religion because she could be in
a situation where the person responsible for the home does not
recognize her faith, its practices and its general or particular
requirements. The latitude of the possible dependence is more important
in this sense with, moreover, the fact that the Muslim recognizes Jewish
and Christian faith but a Christian or a Jew does not consider the
revelation of Islam as authentic16.
Hani Ramadan, brother of Tariq Ramadan and the director of the
Islamic Centre of Geneva, presents similar arguments:
“A non-Muslim does not believe in the prophecy of Muhammad. He
will have difficulty therefore sharing his wife's religious feelings. The
education of children will create a problem. On the contrary, the

The symposium was organized by the Swiss Association of Catholic Journalists. Its title was:
‘Muslims and Christians in Switzerland: what kind of relations?’
15

The conference was organized by the Association mosaïque of the University of Lausanne. Its
title was: ‘Is it possible to live according to Islam in Switzerland?’
16

Neirynck, Jacques and Ramadan, Tariq: Peut-on vivre avec l'islam? Le choc de la religion
musulmane et des sociétés laïques et chrétiennes, Favre, Lausanne, 1999, p. 121.

16
 Muslim, if he takes as a wife a Jew or a Christian, fully recognizes the
prophecy of Moses or Jesus. He should not only respect his wife's
belief, but also give her the means to live in conformity with her
convictions. Some Muslim jurists even say that he has the obligation to
take his wife to her place of worship (church or synagogue) if she wants
it. What better proof of tolerance?”17
Hani Ramadan forgets that the Swiss Constitution guarantees to a
Muslim woman who marries a Christian respect of her religion. In
Switzerland, as regards the education of children, it must be decided by
both parents, whereas in Islamic law, only the Muslim partner decides.
We can understand the reticence of the Swiss Muslim religious
authorities to denounce Islamic religious discrimination in this domain. If
they did not claim it, they would be disavowed by their community, or at
least lose the financial support by Muslim countries. On the contrary, one
does not understand why the Federal Commission Against Racism does
not denounce this norm.
3) Temporary or enjoyment marriage
A) Islamic norms
Shi’i Islamic law permits a form of marriage called zawaj al-mut'ah
(literally: enjoyment marriage) often translated as ‘temporary marriage.’
This kind of marriage is defined expressly in the Iranian Civil Code18.
According to this code, the husband would be able, in addition to the four
regular wives he is permitted to marry in Islam, to take other women in a
temporary marriage, a union that can last for only one hour or as long as
several years, depending on the circumstances in which he finds himself.
Some do not hesitate to call this marriage prostitution.
Temporary marriage is forbidden in Sunni Islamic law. But Sunni
religious authorities allow their co-religionists who live in the West for
studies or a mission, to marry a monotheist non-Muslim woman with the
explicit intention of separating from her once they finish their stay abroad.
Such a marriage permits these students the loophole of engaging in sexual
intercourse without technically breaking Islamic law, which of course
forbids sexual intercourse outside of marriage19.
This problem raised a big debate in the Muslim community of the
United States, following a fatwa in favour of marriage with the intention to
17

Ramadan, Hani: Articles sur l'islam et la barbarie, Centre islamique de Genève, Geneva, 2001,
p. 50 (La tolérance de l'islam en cinq points, article published in: Le Courrier, 22.3.1997).
18
Articles 1075-1077, 1095, 1097, 1113, 1120, 1138, 1151 and 1152 of the Iranian Civil Code. On
this marriage, see Haeri, Shahla: Law of desire, temporary marriage in Iran, I.B.Tauris, London,
1989.
19
Fatwa of Ibn-Baz, president of the Saudi Commission of Fatwa in: Majallat al-buhuth al-
islamiyya, no 25, 1989, p. 89.

17
repudiate after the end of the stay abroad. The Islamic Centre of
Washington submitted the question to the Academy of Islamic law, which
depends on the Organization of Islamic Conference. But the Academy
refused to decide the case due to divergent opinions among its members,
some being in favour of this marriage, and others considering it
fraudulent20.
The customary marriage of the Sunnis as aforementioned is
becoming the equivalent of the Shi’i temporary marriage.
B) Swiss norms
Switzerland, like other western countries, knows the white marriage
problem aimed to facilitate foreigners obtaining residence permits and
citizenships. To our knowledge neither the courts nor the Swiss doctrine
discuss the matter of temporary marriage. The longevity of marriage is
certainly not anymore what it was, a perpetual alliance as still upheld by
the Catholic Church. No one can legally oblige two spouses to remain
united until the death of one or the other. But Swiss law does not allow
marriages that are limited in time in advance. On the other hand, Swiss law
does not permit the dissolution of a marriage without judicial procedure.
There has been a case of a temporary marriage of an Iranian couple
living in Switzerland. After a long cohabitation, they decided to conclude a
temporary marriage for fifty years. But they began quarrelling and decided
to separate. For this, they asked the Swiss Institute of Comparative law a
legal opinion whether they were considered to be married in Switzerland.
In a legal opinion of 2005, the Institute said that the clause limiting the
duration of the marriage is null and void, but the marriage itself is valid
and cannot be dissolved at the term fixed by the spouses21. The federal
office of civil state adopted the same position.
4) Polygamy
A) Islamic norms
The Qur’an limits the number of women a man can marry at one
time to four. However, it recommends to only take one woman if one fears
not to be equitable with them (Sura 4:3) while adding: "You can never be
equitable in dealing with more than one wife, no matter how hard you try"
(Sura 4:129). In addition to these four women, a man could marry an

20

The debate is reported in: Majallat majma al-fiqh al-islami, no 3, part 2, 1987, pp.1107, 1141,
1170, 1232-1233 and 1374-1376.
21

The opinion invoked here is published in the following study edited by the Institute: Aldeeb et
Bonomi (editor): Le droit musulman de la famille et des successions à l'épreuve des ordres
juridiques occidentaux, Zürich 1999, p. 121 and 127.

18
unlimited number of slaves22. Among the Shi’ia, a man can even now
marry an unlimited number of free women in temporary marriages. The
woman, on the other hand, can marry only one man at one time. A woman
who marries two men is considered an adulteress, liable for punishment in
certain countries such as Saudi Arabia or Iran.
Polygamy is forbidden in Tunisia and Turkey.23 In this latter country,
however, polygamy is still practiced and the state promulgates from time
to time decrees aiming to legitimize the children born out of such
marriages. Measures have been taken by certain Arab legislators aiming to
limit polygamy invoking the aforesaid Qur’anic verses (Suras 4:3 and
129). These measures vary from one state to another and can be
summarized as follows:
- The woman can include in the contract a clause of non-remarriage
giving her the right to ask for a divorce if the husband takes another
wife.
- The woman can ask for a divorce in case of remarriage even in the
absence of a contractual clause.
- The husband who wants to marry a new woman must fulfil some
conditions submitted for the judge's approval.
B) Swiss norms
In Switzerland, polygamy is contrary to the principle of equality
affirmed by article 8 nCst. Besides, it constitutes a penal offence according
to article 215 of the Penal Code that stipulates:
“Whoever, being already married, marries another person shall be
confined in the penitentiary for not over five years or in the prison for
not less than three months.
The unmarried person who knowingly contracts a marriage with a
married person shall be confined in the penitentiary for not over three
years or in the prison.”
Article 96 CCS foresees: "Whoever wants to get remarried must
establish that his previous marriage has been dissolved or annulled".
Article 105 par. 1 adds that the marriage must be annulated "when at the
time of contracting the marriage, one of the parties thereto was already
married or that the previous marriage was not dissolved by the divorce or
by the death of the other spouse". The proper authority of domicile or any
one who has an interest in the matter may bring suit for annulment of
22
See Suras 4:3 and 25, 23:5-7 and 24:33.
23

Postacioğlu, Ilhan E.: ‘L'adoption du code civil suisse en Turquie et les points culminants de la
réforme en cours.’, in: L'évolution récente du droit privé en Turquie et en Suisse, Schulthess,
Zürich, 1987, p. 11; Zwahlen, Mary: Le divorce en Turquie, contribution à l'étude de la réception
du code civil suisse, Droz, Geneva, 1981, pp.75-78.

19
marriage (article 106 par. 1). The prohibition of polygamy also applies to
foreigners that would like to contract a polygamous marriage in
Switzerland, the substantive prerequisites for marriage being determined
by Swiss law (article 44 par. 1 CPIL - Swiss Code on Private International
Law).
In some cases, foreigners, already married in their country of origin,
marry a Swiss woman while hiding their first marriage to get a residence
permit. Once having a permit, they divorce and take their first wife into
Switzerland. A Swiss national may also contract a marriage abroad and
then, without declaring the first marriage, contract another marriage in
Switzerland, the first marriage being discovered by intervention of the first
spouse24. In this case, the second marriage is of course void. Indeed,
bigamy is punishable even though the first marriage had been contracted
abroad, so long as the Swiss law has recognized it25.
In June of 2001, the press reported the case of a Moroccan who had
been in Lausanne since 1987, and had married a Swiss woman and
obtained Swiss citizenship in 1995. He had kept hidden from everybody
that he had another wife and two daughters in Morocco. One year after the
divorce from his Swiss wife, he asked for official family regrouping in
order to bring his first wife and two daughters from Morocco. The
administration thus discovered his polygamy. The reaction of the Federal
Office of Foreigners was immediate. Four months later, it annulled his
naturalization because he "had concealed the essential facts that would
have led to naturalization refusal." Two and a half months later, the
Service of the Population of the Canton of Vaud refused him a residence
permit. The Administrative Court confirmed this decision in November of
2000 because "the concerned person lived in a state of bigamy,
contravening to a prohibition which is part of the Swiss public order". It
concluded: "We are in presence of a foreigner who behaved in a disloyal
manner toward his wife and toward the authorities". The Federal Court
rejected the recourse of the Moroccan and he had to leave Switzerland
before August 31st, 200126.
Far from condemning polygamy, Hani Ramadan, director of the Islamic
Centre of Geneva, and a Swiss citizen, advocates in its favour:
“Islam does not impose men to live according to norms that they would
be incapable of respecting. Islam does not recognize to the human
nature more virtue than it possesses. Rather than to impose a theoretical
24
Siegenthaler, Toni: ‘Fascination des mers du sud et mariage, problèmes de la bigamie et de tenue
des registres’, in: Revue de l'état civil, 1985, pp.295-298.
25
Message concernant la modification du Code pénal et du Code militaire du 26.6.1985, Feuille
fédérale 1985 II 1068.
26

Le Matin, 16.6.2001.

20
 monogamy, that very often conceals the adultery, Islamic law allowed
polygamy while limiting and codifying it.
One would have the mind very badly turned to criticize polygamy
negatively because it legalizes a situation of fact, and in the same time
allows that men live in the shade and conduct illegally some extra-
conjugal adventures.
What situation is preferable for the woman? To be taken and rejected at
will and at random meetings, or to be cared for – according to the legal
norms – by an officially recognized and responsible husband?”27
The interested reader can refer, for other arguments, to the booklet
written by Hani Ramadan28 that constitutes a real incitement to the
violation of Swiss law. It is sufficient to say that polygamy was never a
guarantee for the man's fidelity in the Muslim countries. If this were the
case, Hani Ramadan should also plead for polyandry in order to prevent
the disloyalty of women. If he does not venture in this way, it is because
Islamic law does not allow polyandry.
In order to get the establishment of the seat of the World Trade
Organization in Geneva, Switzerland accepted to give up concerning the
stay of polygamous couples. A clause of this agreement stipulates:
“Members of the permanent missions from countries admitting
polygamy will be allowed, from case to case, to take with them two
wives simultaneously; alone one of the two can exercise a lucrative
activity. The financial situation of the permanent mission as well as the
one of the concerned person will be taken, among others, in
consideration”29
5) Dissolution of the marriage
A) Islamic norms
The Qur’an says:
“Repudiation may be retracted twice. The repudiated woman shall be
allowed to live in the same home amicably, or leave it amicably. It is
not lawful for the husband to take back anything he had given her.
However, the couple may fear that they may transgress God's law. If
there is fear that they may transgress God's law, then it shall be no sin
for either of them in what she gives as ransom to get her freedom. These
are God's laws; do not transgress them. Those who transgress God's
laws are the unjust” (Sura 2:229).
27

Ramadan, Hani: La femme en islam, Éditions Maison d'Ennour, Paris, 1996, p. 32-33.
28

Ibid., p. 35-38.
29
WT/GC/1, 17.5.1995.

21
 On the basis of this verse and Muhammad's narratives, Islamic law
foresees three main ways to dissolve marriage: repudiation, ransom and
divorce. Repudiation is the recognized right of a Muslim man, and his
alone, to end marriage by a one-sided declaration, without justification and
without appearing before a court. It can be either definitive, or revocable in
a certain lapse of time (of about three months) again by a one-sided
decision by the husband. It can be exercized by the husband or by a
delegate. Having a Qur’anic basis (Sura 2:229), it is permitted by all
Muslim countries except Tunisia and Turkey. Muhammad affirmed:
"Repudiation is a permitted act which is most detested by God". To
counter abuses, some Arab legislators grant women an indemnity of
consolation (mut'ah) calculated on the basis of maintenance of less than
two years, taking into account the husband's financial situation,
circumstances of the repudiation and the length of marriage. In this respect,
some Muslim countries' legislations allow the woman to include in the act
of marriage the right to repudiate her husband. This possibility remains
however theoretical, since women never dare include such a humiliating
clause for the husband in a marriage contract.
The woman can negotiate with her husband the repudiation against
remittance of a sum of money. Some qualify this procedure as ‘divorce by
mutual consent.’ The term ‘ransom’ would be more appropriate. Indeed,
the Qur’an uses the term iftadat (Sura 2:229), evoking the ransom paid for
a prisoner's liberation30. Even though the woman expresses her will to end
the marriage, the husband remains master of the situation: without his
agreement, the marriage cannot be dissolved. The ransom can even be
sterner than repudiation as it allows the husband to use psychological and
financial pressure on his wife.
Divorce, contrary to the two previous procedures, is dissolution of
marriage pronounced by a judge on the basis of motives foreseen by law.
The woman, who wants to part from her husband, if she does not manage
to get her freedom by ransom, must necessarily address a court to expose
reasons for which she wishes to dissolve the marriage. A husband who
does not want to assume liabilities that are incumbent to him in case of
repudiation may also use the divorce.
B) Swiss norms
There is no problem with a Muslim ‘divorce’ in Switzerland,
whether obtained before Swiss or foreign courts. ‘Repudiation’ and
‘ransom’ however are forbidden in Switzerland because a divorce can only

30

See this term in Surahs 2:85; 2:184; 2:196; 3:91; 5:39; 10:54; 13:18; 37:107; 39:47; 47:4; 57:15;
70:11.

22
be pronounced by judges.31 But in this respect one must distinguish
between what happens in Switzerland and what happens abroad.
Some Muslims living in Switzerland repudiate or divorce amicably
either before an imam or a consulate of a Muslim country in Switzerland.
Such a procedure is not admitted in Switzerland and the spouses remain
married in the eyes of the Swiss authorities.32 In one such case, passed
before the mosque of Geneva and two Muslim witnesses, the wife did not
hesitate to turn against the husband in order to claim part of his real estate
property, which he later acquired thinking that his marriage was definitely
dissolved. In spite of an agreement in writing adjusting financial questions
between the two parties, the wife invoked the nullity of this divorce, as it
had not been pronounced by a Swiss court.
The dissolution of the marriage as well as its conclusion before an
imam in Switzerland, sometimes implying Swiss partners, in violation of
the Swiss law, can be the result of ignorance of the law: imams and
Muslims coming from countries that accept religious marriages and the
repudiation could think that Switzerland has the same system as that of
their countries of origin. But it can also be about cheating the Swiss law. A
Muslim foreigner that enters into a civil marriage in Switzerland, thus
receiving a residence permit, risks being returned to his country if the
marriage is dissolved by a Swiss court. This may tempt him to dissolve the
marriage before an imam without endangering his stay in Switzerland.
It is also likely that some Muslims try to cheat and circumvent
Islamic law. Outside of marriage, Islamic law and social customs forbid
boys and girls to have sexual intercourse or even to frequent with each
other. The girl must enter into marriage as a virgin. To neutralize these
norms in Switzerland, some resort to a religious marriage before the imam
with the authorization of the parents who may think that such a marriage is
valid. Once the young man has got from the girl what he wanted, he may
abandon her when she is pregnant. There, the drama begins. To find a
solution, the Muslim family may push the spouses to proceed with a
repudiation before an imam to save face, and so that no one can blame the
girl for the loss of her virginity. This same procedure can take place when
a Muslim frequents with a Muslim girl outside of marriage and decides to
end this relationship. Before separating, he marries her before the imam;
some time later he repudiates her, thus giving her a final favor.
Even though Swiss law assumes that each of the two spouses has the
right to ask for a divorce, if a woman dares to ask for it, it can cost her
31
Mercier, Pierre: Conflits de civilisations et droit international privé: Polygamie et répudiation,
Dros, Geneva, 1972, p. 78.
32

Federal office of justice: legal opinion, unpublished, dated 15.6.1984.

23
dearly. One Tunisian has been sentenced to fourteen years imprisonment
for his wife's murder. According to the Criminal Court of Lausanne, the
death of his Swiss wife constitutes "the convict's ultimate oppressive act to
dominate a wife who escaped him." On the day of the murder, the woman
had gone to her husband to ask him to sign divorce papers. His pride
wounded, the husband strangled her.33 In August 2006, a Swiss prosecutor
charged a Pakistani man with the “honour killing" of his wife in July 2005,
after he allegedly bludgeoned her to death with a hammer as she slept at
the couple's home in Bellinzona. The man claimed that he acted in self-
defence after being attacked by his wife. The Prosecutor, however, alleged
that he acted because he was opposed to his wife's western lifestyle and her
wish to find a job, and also that she was seeking a divorce.34 In certain
cases, the Muslim husband manages to convince the woman to withdraw
the divorce petition and immediately afterwards he demands a divorce
before a court; a way not to lose face.
Some Muslim couples living in Switzerland go to their country of
origin or hire a lawyer to dissolve their marriage before a Muslim court,
believing that it is more in accord with their religion. Such a process, while
carried out in good conscience, can have some tragic consequences for the
woman, because the material consequences of such a divorce received
abroad are unfavourable for her. Thus, returning to Switzerland, she
attempts to benefit from Swiss law in this domain, but it is often too late
since the Swiss courts officially recognize such a divorce. The woman falls
thus in destitution or ends up having to rely on public aid.
Some Muslim husbands living in Switzerland go to their country of
origin or select a parent in order to get repudiation, which is then being
communicated to the woman. Thinking that he has thus freed himself of
his wife, the husband hurries to contract another marriage abroad and tries
to bring his new wife into Switzerland. He discovers that neither the
repudiation nor the new marriage is recognized in this western country. It
is not without problems for foreign women of good faith, unaware of any
Swiss law. In a concrete case involving an Egyptian couple that had stayed
for years in Switzerland, the repudiated woman instituted an action against
her husband before a Geneva Court. The husband was obliged to undertake
the procedure of divorce according to Swiss legal norms and before a
Swiss court.35
33
24 Heures, 18.2.1997.
34

http://www.metimes.com/articles/normal.php?StoryID=20060823-064344-9661r
35
See on this affair: Decision of the Federal office of justice, unpublished, dated 7.2.1990; Decision
of the Justice civil court dated 14.11.1991 (La semaine judiciaire, 114, no 13, 31.3.1992, p. 209-
224). For other cases of repudiation, see the decision of the Civil court of the district of Zurich
dated 26.11.1963 (Schweizerische Juristen-Zeitung, 1964, p. 289 ss); Federal Court decision,
unpublished, dated 29.1.1971; Legal opinion dated 7.12.1981 of the Federal office of justice

24
 Already in 196236, the Federal Court had decided: "repudiation,
according to Egyptian law, of a Swiss wife by an Egyptian husband is not
recognized in Switzerland nor registered, even though the wife agreed to
divorce and required the enrolment." In this case, the marriage had been
celebrated in Alexandria and the repudiation took place in Moscow,
according to Egyptian law, at the Egyptian embassy.37
However, in one particular case, a repudiation was recognized. Born
in Morocco, a Swiss citizen converted to Islam had married, in Morocco, a
Moroccan woman (thus becoming a dual-national). He pronounced
repudiation in June of 1969, before a cadi-notary. In January of 1971, the
wife agreed to the dissolution of her marriage in writing. Invited by the
Federal Office of Civil Status to register the dissolution of the marriage in
the municipality of origin’s family register, the authority of surveillance in
the Canton of Aargau answered favourably in its decision of May 4th, 1971.
It claimed that the link between the spouses in question and their country,
where the repudiation had taken place, was stronger than the link that
bound them to Switzerland, even though the spouse, a dual-national, had
kept his Swiss citizenship. The two spouses were domiciled in Morocco,
they were Muslim and they had the citizenship of this country.38
Today, for reasons of the Swiss divorce procedure’s laxity, which
became as simple as the Muslim repudiation in case of mutual consent of
the two spouses, the Swiss doctrine is shared regarding the recognition of
repudiation made abroad, notably when there is consent of both parties39.
6) Authority of the husband over his wife
A) Islamic norms
When a girl marries, she passes from her father's control (or that of
her male guardian) to her husband's authority. He can impose on her the
Islamic norms on modesty. He can also require her to fulfil her religious
duties, and to forbid her voluntary fasting (as opposed to Ramadan fasting)
so that she remains at his sexual disposition.40
(JAAC, 46 1982, p. 168-69); Federal Court decision 110 II 5 dated 15.3.1984; Federal Court
decision dated 3.9.1996 (French translation in: Revue de l'état civil, no 1/1997, p. 17-20).
36
Federal Court decision 88 I 48-52.
37

See on this decision: Annuaire suisse de droit international, 1962, p. 218, note Lalive; L'ordre
public dans le droit de la famille, in: Revue de l'état civil, 1969, p. 327; Vischer: Das Problem der
Kodifikation des schweizerischen internationalen Privatrechtes, Rapports et communications de la
Société suisse des juristes, fasc. no 1, 1971, p. 86.
38
Schweizerische Juristen-Zeitung, 1973, p. 25-26; Revue de l'état civil, 1973, no 2, p. 40. See the
commentary of Lalive in: Annuaire suisse de droit international, 1972, p. 390.
39
In favor: Bucher, A.: Droit international privé suisse, Personnes, Famille, Successions, vol. 2,
Helbing and Lichtenhahn, Basel and Francfort-sur-le-Main, 1992, tome II, p. 200; opposed:
Dutoit, Bernard: Commentaire de la loi fédérale du 18 décembre 1987, Helbing and Lichtenhahn,
Basel, Francfort-sur-le-Main, 2nd edition, 1997, p. 173.
40
Al-Qaradawi, Yusuf: Min huda al-islam, fatawi mu'asira, Dar al-qalam, Kuwait, 3rd edition, 1987,
pp.483-490.

25
 Although the Muslim woman currently can occupy all social
functions, the husband retains the right to forbid her to work out outside
the home. Article 11 of the Egyptian Constitution brings an interesting
precision: "The State shall guarantee the coordination between a woman's
duties toward her family and her work in society, considering her to be
equal to a man in the political, social, cultural and economic spheres
without detriment to the rules of Islamic jurisprudence." 41
One Muslim asked the Egyptian Commission of Fatwa if he could
prevent his wife from continuing to work. The Commission answered that
the woman could not, without authorization of the husband, leave the
conjugal house to work, whatever her work may be and even though it
might be necessary for others, if the wife e.g. works as a physician or
midwife. Therefore, the woman must obey her husband, abandon her work
and remain at home. The conjugal duties are bilateral: the woman must
remain at home but the husband must provide for her living. The
Commission mentions Sura 4:34, which institutes the husband's authority
over his wife; this verse ends with the husband's right to hit her in case of
disobedience.42
An Egyptian professor of Al-Azhar University still teaches his
students that the husband has to care for his wife. She is thus not required
to work. However, if the woman has no support (a husband, a father, a
brother, a parent), she can work in the strict setting of Islamic morals.43
B) Swiss norms
The new Swiss Constitution guarantees the equality of man and
woman (article 8) as well as the freedom of religion (article 15 par. 3 and
4). With regard to work, article 167 CCS stipulates: "in the choice of a
profession or occupation and in the exercise of these activities, every
spouse has consideration to the person of the other spouse and to the
interests of the marital union". The Message of the Swiss Federal Council
adds: "in case of a lack of understanding, it is necessary to make prevail
the individual freedom."44
The CPIL submits marital rights and duties to the law of the spouses'
domicile. If they are not domiciled in the same country, the law of the
country of domicile that has the closest link with the case is applicable
(article 48 par. 1 and 2).
These norms lead to the application of Swiss law for Swiss citizens
as well as for foreigners living in Switzerland, whatever their religion. The
Muslim husband cannot invoke Islamic law that awards him authority over
41
http://www.misr.gov.eg/english/laws/Constitution/chp_two/part_one.asp.
42
Al-fatawi al-islamiyya min dar al-ifta, Cairo, vol. 9, 1983, p. 3076-77.
43
Mahmud, ‘A.: Huquq al-mar'ah fil-qanun al-duwali al-‘am wal-shari‘a al-islamiyya, Dar al-
nahda al-‘arabiyya, Cairo 1991, p. 91.
44
Feuille fédérale 1979 II 1245.

26
his wife. He will not be able to forbid her to work, nor to impose on her
religious duties. To oblige his wife to accomplish her religious duties
would be considered an objective reason of dissension and divorce.45
The practice, however, can differ from principle, whatever the
national or religious adherence of the spouses is. Article 167 CCS is one of
the rare articles on which there are no court decisions, and the legislator
did not foresee any direct sanction.46 Women cannot always address
themselves to judicial authorities or the police to claim their rights. Those
that do, may expose themselves to reprisals by their husband and incur the
threat of divorce. This last measure can represent an efficient means to
dissuade women, especially foreign, to face their husband's caprices. These
women must often choose between bad and worse. There was the case of a
Muslim husband who shut his wife in the cellar for two days for the least
mistake.
7) Relations between parents and children
A) Islamic norms
Islamic law distinguishes between guardianship (hadana) and
paternal authority (wilaya). Muslim state norms look alike on the essential
points: the mother holds the child's guardianship for a limited period, and
that period can either be reduced if the mother is not Muslim, or
suppressed if the mother apostatizes. The paternal authority remains in the
father's hands. Children must be raised in the Muslim religion. Parents do
not have another choice if one of them is Muslim, and the child cannot opt,
once adult, for another religion. In case of apostasy of the father, he loses
paternal authority as well as guardianship.
Adoption is a problem for Muslims, since it is a forbidden institution in
Muslim countries according to Qur’anic verses (Sura 33:4-5). The only
Arab country that permits adoptions is Tunisia where, however, only one
Muslim can adopt a Muslim child. In the other countries, parents can
graciously receive a child, giving him affection and the necessary material
help, but the child cannot carry the name of the welcoming family nor have
a share of the inheritance, although he can benefit from a bequest, and
nothing prevents the welcoming person from marrying the hosted girl.
When a Muslim couple cannot have any children, the husband often
assigns responsibility for it to his wife. Since artificial insemination is little
developed, or even forbidden in Muslim countries, and adoption is
prohibited, the husband repudiates his wife or takes a second one.

45
See Federal Court decision 74 II 1, JdT 1948 I 425, SJ 1949 335; RSJ 63/1967 380.
46
Grosse, Jacques-Michel: ‘Le statut patrimonial de base, les effets généraux du mariage’, in: Le
nouveau droit du mariage, Cedidac, Lausanne, 1986, p. 18.

27
B) Swiss norms
According to article 297 par. 1 of the Swiss Civil Code, "during the
marriage the parents exercise the parental care jointly". Article 159 par. 2
foresees that spouses "mutually bind themselves to cooperate with each
other in safeguarding the interests of the union and in caring and providing
for the child". Article 303 states that "the father and the mother shall
provide for the religious training of the child" (par. 1); "a contract which
restricts this power is void" (par. 2). It adds that a child who completed his
or her sixteenth year has the right to choose his or her faith (par. 3). If the
spouses’ opinions diverge in this domain, it is on them to look for
understanding. In disagreements on important questions, they can, if the
case arises, resort to an office of consultation or solicit judicial mediation
(articles 171 and 172)47. Article 49 par. 3 aCst foresaw: "The holder of the
paternal or tutorial authority shall determine the religious education of
children…until they have completed their sixteenth year". This disposition
has not been kept in the Constitution of 1998 since it is included in the
Swiss Civil Code.
In the case of divorce, the judge accords the parental care to one of
the parents and fixes the relation between parents and children (article 133
CCS). The guardianship board may also transfer parental care to both
father and mother if they have agreed upon to share in the care and the
distribution of costs, if this is compatible with the well-being of the child
(article 298a par. 1). The holder of the paternal authority arranges for the
child's religious education freely. His liberty in this respect cannot be
hindered, neither by the judgment of divorce nor by a convention48.
As one notes, the Swiss norms are not compliant with Islamic
norms. How is the conflict resolved between these two norms?
According to article 82 par. 1 CPIL "the relationship between
parents and child is governed by the law at the child's habitual residence."
Article 82 par. 2 adds: "If, however, neither parent is domiciled in the
country of the child's habitual residence, but the parents and the child are
citizens of the same country, the law of the country of their common
citizenship applies."
Mixed marriages present us with problems in this field. The Muslim
husband generally requires that his children be educated in the Islamic
religion, requiring the non-Muslim spouse to accept, which she often
agrees to easily. If the two spouses do not agree, they generally decide to
divorce. In one actual case, the Muslim father wanted to mark his son
religiously through circumcision, but the Christian mother was opposed.
47
Deschenaux, Henri et Steinauer, Paul-Henri: Le nouveau droit matrimonial, effets généraux,
régime matrimonial, succession, Staempfli, Bern, 1987, pp.34-35; Feuille fédérale 1979 II 1232.
48
Federal Court decision 79 II 344.

28
The two ended up divorcing and the child was assigned to the mother. I
have been consulted concerning two marriages in Italy and Belgium in
which divorce was requested by the wife because of male circumcision.
Such cases are difficult as western laws do not prohibit male circumcision
and sometimes the judge favors this practice. In the Belgian case, the
deciding judge was Jewish.
In 1990, a tragic case involved a French-Swiss man who converted to
Islam and married a Malaysian woman who also converted to Islam; they
had two daughters. The family settled in France. The husband accused his
wife of being a bad Muslim. She fled to Geneva and found shelter in a
women's centre where her husband kidnapped the two little daughters on
the night of September 16th, 1993, and disappeared for three years. He
reappeared in Malaysia, where he asked a court for the annulment of his
marriage and obtained guardianship of his two daughters.49 His wife
became a Swiss citizen and asked for a divorce that she obtained on May
17th, 1994, with parental authority over her daughters. When the husband
returned to Switzerland two years later, without his daughters, he was
stopped by the police and convicted, in 1997, to five years of prison by the
Criminal Court of Geneva for abduction and sequestering. He refused to
indicate where the children are, and nobody knows if they are still alive.
He declared in court:
“My main worry consists of preserving the education of my daughters.
If I indicate to you where they are, I lose the control and the
responsibility of this education. Whereas, at the end of my jail sentence,
I will have the possibility of recovering them and exercising my role as
a Muslim father. My religion tells me that I should not indicate where
they are.”50
Interrogated by the Swiss French Radio, Hafid Ouardiri, spokesman of
the Mosque of Geneva, commented: "The respect of God's laws supersedes
the mother's grief". Hani Ramadan, director of the Islamic Centre of
Geneva, justified the father's behaviour:
“There is...in this suit a dimension that is necessary to be taken into
consideration. The ex-wife broke the agreement to found a family
according to the practices of Islam. Therefore, we can understand the
motive that pushed the husband to act in this way.”51
Hani Ramadan does not explain what the mother's torts are. These
declarations constitute incitements to transgress Swiss law.
One should ask whether the decision of a Muslim country to assign
parental authority to the father because of his predominance in the
49
Tribune de Genève, 12.12.1996 and 24 Heures, 12.12.1996.
50
Quoted by Le Nouveau Quotidien, 4.9.1997, p. 22.
51
Quoted by Le Nouveau Quotidien, 4.9.1997, p. 22.

29
education of the children is not contrary to the Swiss public order, either
because the child's efficient interest is not taken into consideration, or
because it constitutes a violation of the principle of sexual equality. In the
event that a Muslim Egyptian would institute an action of divorce against
his Swiss wife of Christian faith in Egypt, it is obvious that the Egyptian
court would deprive the Swiss wife of any guardianship over her children
because of her religion. Switzerland would not execute this judgment
without considering the interests of the children. Religion being the only
criteria on which the Egyptian decision is based would be considered
contrary to Swiss public order.
With regard to the father's authority on the marriage of his children,
Muslim parents living in Switzerland cannot force their children to get
married, and they cannot oppose their marriage, for example with a non-
Muslim. To solve this problem of conscience, some Muslim parents send
their daughters back to their country of origin, to impose on them a
marriage arranged by the family. Article 45 CPIL recognizes as valid in
Switzerland a marriage validly concluded abroad. But if one of the two
spouses is Swiss or domiciled in Switzerland, such a marriage, done
without the consent of the two spouses, will not be recognized. It would be
contrary to the Swiss public order (article 27 par. 1). Such a marriage has a
relative nullity, which means that it remains valid until it is attacked. We
have to notice that the girl's refusal to obey the orders of her parents
sometimes has drastic consequences; she may be killed.
An important problem that has to be solved before marriage is the
forename of children. Forenames in the Arabic language can be with
Muslim, Christian or neutral connotations. In Switzerland, the choice of
forenames is incumbent upon both parents if they are married; if not, the
choice is incumbent upon the mother.52 It is announced at the same time as
the birth.53 This question should therefore be adjusted before marriage or at
the latest before birth.
Swiss law permits adoption. Some Muslims may host a child because
adoption is forbidden in Islamic law. But hosting a child does not give
them a right to take the child into Switzerland as if it had been adopted.
Because of these problems relating to adoption, a booklet published by the
Swiss Institute of Comparative Law advises mixed couples to submit to
premarital examinations (barrenness, venereal illnesses, AIDS, etc.), which
are also required by certain Muslim countries. If one of the two spouses is
sterile, the project of marriage could meet difficulties, even though the
spouses may accept a marriage without children. However, the husband's
family will very rarely accept a so serious breach of the social rules, even

52
Article 301 par. 4 CCS; article 69 par. 1 of the Ordonnance on the civil status.
53
Article 69 par. 2 of the Ordonnance on the civil status.

30
though the spouses live in Switzerland, far away from the husband's
family.
Some information circulating in social service surroundings indicates
the existence of groups in Switzerland who bring children from Muslim
countries. As a Christian cannot adopt a Muslim child according to the
laws of these countries, the groups push Christian families to convert to
Islam.
I have been consulted in two cases. A Swiss woman married a north-
African man who adopted a girl. Once the girl grew up, he married the girl
and divorced his Swiss wife who did not know that she was giving
protection to a concurrent and completely ignored the Islamic norms in this
field. In another case, a north-African diplomat in Switzerland took with
him a poor young girl that he declared as his adoptive daughter. He did not
treat her like his other children, but used her for domestic work. He even
sent her to a Swiss family to serve and claimed her salary. The Swiss
family convinced her to escape from her ‘adoptive’ family and obtained
humanitarian permission for her to stay in Switzerland.
One of the most poignant problems is child abduction. No Muslim
country has signed the Hague Convention on the Civil Aspects of
International Child Abduction.
8) Matrimonial regime and economic relations
A) Islamic norms
In Islamic law, the legal regime is the separation of goods. This
means that every spouse keeps the property of his possessions acquired
before or during the marriage. This system penalizes the woman if she
remains at home, takes care of the household and children. As this work is
not being remunerated, she leaves the marriage only with the resources that
she had before the marriage. As for the husband, he keeps everything that
he owned before the marriage and everything he gained during the
marriage by his lucrative activities. This inequality is particularly flagrant
as the husband can forbid his wife to work. It has to be added that a
divorced wife has the right of maintenance for only a limited period,
variable according to the country between a few months and up to two
years.
To remedy the woman's precarious economic situation, Islamic law
foresees an obligatory payment of a dowry on behalf of the husband to his
wife. One part of this dowry is generally paid before marriage, and the
remainder at the time of divorce. If the divorce is attributable to the wife's
torts, she loses the right to the remainder of the dowry. On the other hand,
to be freed from her husband, she may be obliged to give up the remainder
of the dowry and to repay him what she already received. The dowry can

31
be a symbolic amount only, aimed at not overwhelming the husband.
However, it may constitute an important amount to assure the economic
future of a divorced wife. This dowry is in principle the woman's exclusive
property, but sometimes her parents take it.54
B) Swiss norms
In Switzerland, if the spouses do not choose one of the regimes
provided by the Civil Code, they are submitted to the legal regime of
participation of the acquests. This means that if the marriage is dissolved
by the divorce or death of a spouse, the assets acquired during the marriage
will be shared equally. Assets, that each spouse possessed before the
marriage, they remain the property of the concerned spouse. On the other
hand, a divorce does not necessarily end material relations of the spouses
since the law foresees maintenance obligations. These norms apply to all
Swiss whatever their religion.
If a spouse is foreign, the CPIL allows spouses to choose a law
governing their marriage. They can "choose between the law of the country
in which they both have their domicile, or will have their domicile after the
marriage, and the law of one of their countries of citizenship" (article 52
par. 1 CPIL). The choice of law must be made in writing or be clearly
evident from the marital property contract (article 53 par. 1 CPIL). It may
be entered or altered at any time. If it is made after the conclusion of
marriage, it is effective retroactively from the time of the conclusion of
marriage, unless otherwise provided by the parties (article 53 par. 2 CPIL).
If the spouses have not chosen a particular law, their marital property is
governed by the law of the country in which both spouses are domiciled at
the same time, or, if there is none, the law of the country in which both
spouses were last domiciled at the same time. If the spouses were never
domiciled at the same time in the same country nor have common
citizenship, the provisions of the Swiss law on separation of property apply
(article 54 CPIL). If the spouses move their domicile from one country to
another, the law of the new domicile applies retroactively from the time of
the marriage, unless the spouses excluded the retroactivity by an agreement
in writing (article 55 CPIL). On the basis of these rules, Islamic law will be
applicable only to spouses having the same citizenship, but domiciled in
two different countries.
The booklet published by the Swiss Institute of Comparative Law
advises mixed couples to submit their matrimonial regime to Swiss law. If
the woman chooses to remain at home, it is necessary that her work be
taken into consideration in the sharing of possessions acquired by the
husband, if the marriage is dissolved by divorce or death. If the woman
54
A Marriage contract between an Egyptian woman and an Algerian living in Canada mentions as
dowry 500,000.- DM (Deutsch Mark).

32
works, she must avoid her possessions going entirely into the household or
into her husband's hands. She must require the husband to also participate
in the expenses of the household. Indeed, some Muslims - and others -
marry a Swiss woman to get a residence permit and the right to work in
Switzerland. There are cases where husbands charged the wife with the
household work and sent back all their gains to the country of origin. Once
they believe to have earned enough in Switzerland, they divorce or
repudiate their wives and return to their country to marry other wives. If
the spouses would like to settle abroad, it is important to regulate economic
rights depending on whether the woman wishes to work or to remain at
home. The wife should be careful not to find herself on the street with
nothing after a divorce or the death of her husband. It may be useful to
require of her husband the remittance of an amount of money, as large as
possible, as dowry. These are the rules of the game among Muslims. For
this reason, the Swiss embassy in Cairo insists that the dowry be
sufficiently high to provide for the woman's needs in case of a divorce. In
spite of this insistence, some contracts of marriage between Swiss women
and Egyptian Muslims indicate that the dowry is one Egyptian pound (less
than 50 Swiss cents, paid sometimes by the woman)!
9) Inheritance law
A) Islamic norms
Islamic law includes some discriminatory norms against women in
inheritance matters. This discrimination is based on the Qur’an that
bestows to sons double of what is given to girls (Sura 4:11) and to the
husband double of what his wife inherits (Sura 4:12-13). This
discrimination is explained by the fact that men have more duties than
women.55 These justifications are unacceptable, particularly when women
provide for all the needs of their families.
Islamic law also includes some discriminatory norms because of
religious adherence. Thus, a Muslim that apostatizes can inherit from no
one, and his succession is opened during his life, notably if he abandons
his country to escape legal?? suits. Muslim heirs alone can inherit from
him. If he returns to Islam, he recovers his possessions.56 On the other
hand, a Muslim cannot inherit from a Christian and vice versa. Thus, if a
non-Muslim wife marries a Muslim and has children (necessarily Muslim
according to the Islamic law) she cannot inherit from her husband or her
children. On the other hand, Muslim children cannot inherit from their
non-Muslim mother. If a Christian becomes Muslim, only his children who
convert to Islam can inherit. To circumvent this rule, one should constitute
a bequest to competition of a third of the succession in favour of the heir
55
Colloques sur le dogme musulman, p. 201-202.
56
This is indicated in the article 294 of the Kuwaiti Family Code.

33
deprived of the inheritance for reason of religious difference. Islamic
norms concerning succession incite non-Muslim wives married to Muslims
to convert (in pretence) in order not to lose their share in their husband's
inheritance and so that their children (generally Muslim) are not excluded
from their own inheritance.
B) Swiss norms
In Switzerland, article 8 nCst forbids discrimination based on sex or
religion. It has its application in inheritance law, contravening Islamic
norms. When the deceased has his last domicile in Switzerland, Swiss
authorities are competent (article 86 par. 1 CPIL) and Swiss law applies
(article 90 par. 1 CPIL). If the deceased is Muslim, Islamic norms are
excluded by the conflict of laws rules.
The problem arises when a foreign deceased in his will chooses the
application of Islamic law, since Swiss law permits the choice of
applicable law (article 90 par. 2 CPIL)57. In the same way, if the foreign
deceased had his last domicile abroad, Swiss authorities have no
jurisdiction over his assets in Switzerland unless the foreign authorities do
not deal with them (article 88 par. 1). In this case, his estate is governed by
the law determined by the conflict of laws rules of the country of domicile
(article 91 par. 1 CPIL). Here also, Islamic law may be applicable. Finally,
it is necessary to take account of international conventions, notably the
convention between Switzerland and Iran of 1934, which foresees the
application of the national law of the deceased.
When Islamic law is applicable, it is likely, according to the
doctrine, that rules excluding some people of succession for motives based
on race, citizenship or religion are considered to be contrary to Swiss
public order, when there are meaningful links with Switzerland.58 What
about the assignment of an unequal share because of sex? This question
was answered neither by jurisprudence nor by doctrine. We think that if
heiresses agree upon the application of Islamic norms that discriminate
against them, the Swiss authorities called to distribute the succession and
the Swiss banks solicited to transfer the succession to the heirs must not
raise as an obstacle the discriminatory character of Islamic norms. It is not
necessary to be more royalist than the king. If heiresses ask for the respect
of the constitutional principle of sex equality, it should be accepted. It is
necessary to recall that numerous voices in the Muslim countries ask for
the application of such equality in matters of inheritance59.
57
Bucher: Droit international privé suisse, op. cit., tome II, p. 396. A Swiss cannot subject his
succession to the law of another country of citizenship.
58
Ibid., p. 317.
59
Aldeeb Abu-Sahlieh, Sami A.: ‘Unification des droits arabes et ses contraintes’ in: Conflits et
harmonisation: mélanges en l'honneur d'Alfred E. von Overbeck, Éditions universitaires,
Fribourg, 1990, pp.198-199. Similar opinion in: Al-Ashmawi, Muhammad Sa'id: Al-shari'a al-
islamiyya wal-qanun al-masri, dirasa muqarana, Maktabat Madbuli, Cairo, 1986, pp.35-53, and

34
 III. How to resolve the problem of Islamic law
We are moving ineluctably towards a generalized conflict between
the western, secularized concept and the Judeo-Islamic concept of law.
How can we solve this situation and guarantee the minorities' rights in
conformity with the principle of equality between individuals, without
discrimination based on religion?
Both Muslim and western countries are urged to answer this
question if they are not willing to find themselves confronted by a situation
similar to Algeria (internal religious war) and the former Yugoslavia
(disintegration of the country on the basis of religion).
1) Answers inside the Arab countries
There are different attempts to remedy the problems created by the
Islamic concept of law.1 Some Muslim thinkers try to divide between the
two sources of Islamic law: the Qur’an and the Sunna. They consider only
the Qur’an to be the word of God, and therefore they reject the Sunna, thus
reducing the quantity of norms covered by the label "Islamic law". This is
the theory of Muammar Qadhafi, his compatriot Judge Mustafa Kamal Al-
Mahdawi and Rachad Khalifa. Al-Mahdawi was dragged before the courts
for numerous years because his book entitled Proof by the Qur’an
questioned the Sunna of Muhammad and some Islamic norms. The Court
of Appeals in Benghazi acquitted him on June 27th 1999, probably for
political reasons, but prohibited the distribution or the reprint of his book.2
Rachad Khalifa was also considered to be an apostate but he had less luck:
he was murdered in 1990.3
Muhammad Mahmud Taha, the founder of the Republican Brothers
in Sudan, presented a theory reducing the normative reach of the Qur’an.
He considered as obligatory only the first part of the Qur’an, that was
revealed in Mecca, the second part revealed in Medina being dictated by
political conjuncture. He was condemned by a Sudanese Court and hanged
on January 18th 1985.4
Shahrur, Muhammad: Al-Kitab wal-Qur'an, qira'a mu'asira, Sharikat al-matbu'at, Beirut, 1992,
pp.458-459 and pp.602-603.
1

For more details, see Aldeeb Abu-Sahlieh, Sami A.: Introduction à la société musulmane:
fondements, sources et principes, Eyrolles, Paris, 2005 p. 326-348
2
Al-Mahdawi, Mustafa Kamal: Al-bayan bil-Qur'an, Al-dar al-jamahiriyya lil-tawzi wal-i'lan,
Casablanca, 1990.
3
Rachad developed his theory in his booklet: Qur’an, Hadith and Islam:
http://www.submission.org/qhi.html
4

On this Sudanese thinker, see Aldeeb Abu-Sahlieh, Sami A: Droit familial des pays arabes, statut
personnel et fondamentalisme musulman, in: Praxis juridique et religion, 5.1.1988, pp.39-41. Text
and commentary of the judgement in: Kabbashi, Al-Mukashifi Taha: Tatbiq al-shari'a al-
islamiyya fil-Sudan bayn al-haqiqa wal-ithara, Al-Zahra lil-i'lam, Cairo, 1986, pp.80-96 (the
author was the judge who condemned Taha).

35
 More categorical, the Egyptian thinker Faraj Fodah rejected Islamic
law through his critical and sarcastic writings. He was murdered on June
7th 1992 by a fundamentalist Muslim.5
Professor Abu-Zayd from Cairo University tried a liberal
interpretation of the Qur’an. As he was not a jurist, he did not present the
legal consequences of his interpretation. A fundamentalist group
successfully instituted a suit for apostasy against him. This matter got to
the Egyptian Court of Cassation, which confirmed his condemnation on
August 5th 19966, and required the separation of Abu-Zayd from his wife.
The couple left Egypt and asked for asylum in the Netherlands, for fear of
being killed.
On the philosophical level, there have been attempts to overtly extol
the abandonment of revelation and the de-sacralisation of the holy books.
So the Egyptian philosopher Zaki Najib Mahmud (d. 1993), an adept of
scientific positivism, believes that one should take from the Arab past or
the western present only what is useful to Arab society.7 To judge what is
useful and what is not, one has to consider only one reason, whatever the
examined source: revelation or non-revelation.8 This attitude supposes the
dismissal of all holiness from the past.9 Things must be appreciated in
practice, without falsifying historic data or falling into generalizations.10
"The key to truth today", he writes, "is to digest the idea that we are well in
transformation, therefore in mutation; so, the past cannot govern the
future."11 He adds that in order to be able to construct a modern society,
Arab countries must eradicate from their mind the idea that "Heaven
ordered and the Earth must obey; the Creator drew and planned, and the
creature must be satisfied with its destiny and its fate."12
Husayn Fawzi (d. 1988), an Egyptian freethinker, adopts a similar
ideology. In the Egyptian intellectual meeting with Qadhafi on April 6th
1972, he said that modern societies could not be governed by religion.
"That personal conviction intervenes in the domain of human relations
does not create a problem. But we should not consider that any religion
5

On Faraj Fodah, see: http://www.geocities.com/lrrc.geo/Foda/;

6

Decision published by Al-Mujtama al-madani (Cairo), September 1996.

7
Mahmud, Zaki Najib: Tajdid al-fikr al-arabi, Dar al-shuruq, Beirut and Cairo, 1974, pp.18-20;
Mahmud, Zaki Najib: Al-ma'qul wal-la ma'qul, Dar al-shuruq, Beirut and Cairo, 1976, p.34.
8
Mahmud: Tajdid al-fikr al-arabi, op. cit., p. 21; Mahmud, Zaki Najib: Thaqafatuna fi muwajahat
al-asr, Dar al-shuruq, Beirut and Cairo, 1976, p. 96.
9
ibid., pp.51-53.
10
ibid., pp.65, 79 and 80.
11
ibid., p.228.
12
ibid., pp.294-295. For more details on the position of this philosopher, see Aldeeb Abu-Sahlieh:
L'impact de la religion, op. cit., pp.132-134.

36
directs modern society. Each keeps for himself his relation with his own
God and His Apostles. But it cannot mean that any people that progresses
toward civilization is obliged by principles or norms of conduct established
in one time or another. I cannot admit what my reason rejects, whatever
pressures the government exercizes against me. My reason is the leader
and the master."13 In fact, this philosopher rejects all revelation. At the time
of my meeting with him on September 8th 1977, he told me that God had
created the world in six days and that he had taken a rest on the 7th day, and
continuously henceforth he is still resting. Therefore, God could not have
sent all the prophets who came after the 6th day.
We find a similar position with the famous philosopher and
physician, Mohammad Ibn Zakariyya Al-Razi (in Latin: Rhazes; d. 935).
He expressed distrust of the revelation: "God has provided what we need to
know, not in the arbitrary and divisive gift of special revelation, which
only foments bloodshed and contention, but in reason, which belongs
equally to all. Prophets are impostors, at best misled by the demonic
shades of restless and envious spirits. But ordinary men are fully capable
of thinking for themselves and need no guidance from another." Asked if a
philosopher can follow a prophetically revealed religion, Al-Razi openly
retorts: "How can anyone think philosophically while committed to those
old wives' tales, founded on contradiction, obdurate ignorance and
dogmatism?”14
2) Answers inside the western countries
Western thinkers are not aware of the ideological debate about the
Islamic concept of law for two reasons. First, the West has forgotten the
dramatic episodes, which preceded the present secularisation. They enjoy
the results paid expensively for by the past generations, which struggled to
separate the church from the state. We have to notice that although very
fierce, that struggle is probably less tragic than the struggle that Islamic
society has to go through before obtaining a separation, not between state
and church (which does not exist in Islamic society) but between the state
and religious laws. This is the second reason of the unawareness of western
thinkers. They have never experienced such a situation. They do not know
the difference between the two fundamental sources of Islamic law (the
Qur’an and the Sunna) and the Gospel. The Qur’an and the Sunna are legal
texts. Maybe they should remember the axiom of the Islamist groups: The
Qur’an is our constitution. Islamic law, according to the great majority of
the Arabo-Islamic constitutions, is a source, or even the source of law. To
13

Al-Ahram, 7.4.1972, p.6.

14

The Encyclopaedia of Islam, CD, Brill, Leiden, vol. 8, 1999, p. 474a.

37
separate between state and religious laws means in fact to abandon Islam.
It means apostasy, with its fatal consequences. It means atheism.
This is a tremendous dilemma, which necessitates huge efforts of
rationalization and freedom of expression. These two conditions are
lacking in the Arabo-Islamic society. Here the Western contribution is
valuable. The West has freedom of expression (although not complete) and
has reached a high level of rationalization. Western thinkers should
analyze accurately the concept of revelation and help Muslim thinkers to
engage in such an analysis.
As a first step, I suggest that the West should begin to teach in its
theological schools that the understanding of revelation as a definitive and
forever enclosed text is a false and dangerous concept for humanity, that
every human being has a mission to fulfil on this earth, and that the Spirit
never ceases to blow. The Prophet Joel said in this respect:
“I will pour out my Spirit on all flesh. Your sons and your daughters
shall prophesy, your old men shall dream dreams, and your young men
shall see visions. Even on the male and female slaves, in those days, I
will pour out my Spirit” (Joel 3:1-2).
This idea is confirmed by Paul who writes to the Corinthians: "You can
all prophesy one by one, so that all may learn and all be encouraged" (I
Corinthians 14:31). To consult the Bible, the Gospel and the Qur’an means
to look at the inheritance of humanity. But this must serve to better watch
ahead, into a look at our time. It is not possible to live the present
exclusively with norms of the past. This attitude would condemn humans
to immobility, and therefore stagnation. Imam Mahmud Shaltut (d. 1964)
wrote:
“One who immobilizes himself on opinions of predecessors and is
satisfied with their knowledge, and their system of research and
investigation, commits a crime against the human nature and deprives
man of the gift of reason, which characterizes him.”15
If this idea is taught in the West, it can progressively spread thereafter
among Muslims and Jews alike. Without it, the 21st century will be ravaged
by religious wars, stirred by hallucinated and radical Jews, Christians or
Muslims, all pretending to obey God's orders, given long ago.
My suggestion aims to create the pre-condition for the birth of a
Siècle des Lumières in the Arabo-Islamic society as well as in the Jewish
society. Although this aim is primordial, it may take a lot of time and
energy… and perhaps many sacrificed lives. In the meantime, western
15

Shaltut, Mahmud (1964): Min tawjihat al-islam, Dar al-shuruq, Beirut and Cairo, 7th edition,
1983, p.126.

38
societies have to protect themselves from the catastrophic consequences of
the Islamic concept of law on their democratic systems and their territorial
integrity. Preventive measures have to be adopted on the legal level. They
must impose the respect of their laws by Muslims who live inside their
borders and be very careful of any claim of this community, which
infringes the secularity of the law. They should not give their nationality to
those who consider their religious norms superior to the state's norms.
Certainly, a Muslim should not be required to eat pork or drink wine to
obtain naturalization. But is it not right to ask him to respect fundamental
principles such as freedom of religion, and the norms that ensue? For
example, a Muslim that refuses his son the freedom to change religion at
the age of sixteen, or refuses that his daughter marries a Christian, should
not be naturalized. An imam who would marry the couple prior to the civil
marriage must not only be excluded from naturalization, but also forbidden
to live in western countries. It would be necessary to determine the
foreigners' norms, which enter into conflict with western norms, and see
which ones the foreigners must ultimately respect.
This rigor must also be observed in regard to claimants of political
asylum. Article 2 of the Convention relating to the Status of Refugees
states: “Every refugee has duties to the country in which he finds himself,
which require in particular that he conform to its laws and regulations as
well as to measures taken for the maintenance of public order.” I have to
insist on the question of cemeteries. Western countries are more and more
inclined to erect cemeteries exclusively reserved for Muslims. Cemeteries
are the mirror of what should be the relations between living persons.
Muslims refuse to be buried with non-believers as a consequence of their
religious ideology, which separates between believers and unbelievers (a
form of apartheid). These cemeteries are just one part of many claims that
will soon be put on the table. Therefore, I propose that all religious
cemeteries be abolished, including Jewish cemeteries. Any request for a
religious cemetery should be considered as an infringement of the law
against racism and discrimination. We have to notice that, unfortunately
and naively, the churches are generally in favour of Islamic cemeteries.16
The second point on which the West has to insist is mixed
marriages. I am not opposed to mixed marriages between Muslims and
non-Muslims. But we have to be aware that the present situation is
discriminatory. Muslim men marry non-Muslim women but they refuse
that Muslim women be married to non-Muslim men. These men are in fact
obliged to convert to Islam if they want to marry a Muslim woman. On the
other hand, children resulting from these mixed marriages are always
16

See Aldeeb Abu-Sahlieh, Sami A.: Cimetière musulman en Occident: normes juives, chrétiennes
et musulmanes, le cas suisse, L'Harmattan, Paris, 2002.

39
Muslim, and they have no choice to change their religion. Therefore, I
propose that the state imposes a contract of marriage in which both
partners agree to respect the law of the country where they live. Any
coercion to convert a person in order to marry must be harshly punished.
I must caution against inter-faith dialogue if it is not founded on
frankness and the respect of human rights. Christian churches do a
disservice to their followers and Muslims when they adopt flattering
speech and sustain Muslim demands without accounting for ulterior
motives and consequences. Very often this dialogue only serves to travel
and eat well. It is sufficient to note that decades of inter-faith dialogues
between church leaders and Muslims have not even successfully put an end
to abuses of Muslims who marry non-Muslim women, but forbid the
marriage of a non-Muslim man with a Muslim woman.
If western countries have to take all possible precautions regarding
Muslims, to avoid the implosion of their democratic systems and the
disintegration of their territories, they also have to adopt a position of
justice in their international relations. Unfortunately, western partiality has
damaging consequences for relations not only between Muslim minorities
and western countries, but also between non-Muslim minorities and
Muslim states.

40
Appendix: Model contract for mixed marriage
(This model is taken from the booklet: Sami Aldeeb: Mariages entre
partenaires suisses et musulmans: connaître et prévenir les conflits, Swiss
Institute of Comparative Law, Lausanne, 4th edition, 2003, p. 35-37)1.
This model contract should be separately completed by each of the two
future spouses, who then compare their answers. The agreed final text
should be signed before a notary, who will retain a copy of it. Please
cancel or modify any passages which you consider to be inappropriate.
1) Celebration of the marriage
After due consideration, the undersigned
Mr............... Born on ...............
Nationality............... Religion...............
Civil status (single, divorced, widowed)
and
Mrs................ Born on ...............
Nationality............... Religion...............
Civil status (single, divorced, widowed)
have agreed as follows:
Their marriage shall take place
in Switzerland in the civil registry at...............
abroad (name of the country)...... before...............
The civil ceremony shall be followed by a religious ceremony (specify the
ceremony).........
or
The civil ceremony shall not be followed by a religious ceremony.
Their common domicile will be (name the country)...............
The wife keeps her Swiss nationality.
She will retain her family name, (or) she will adopt the family name of her
husband.

The booklet, available in French and German, reproducing this model contract in French, German,
Italian, English and Arabic, can be ordered at the Swiss Institute of Comparative Law, Dorigny,
1015 Lausanne, Tel. 021/6924911 - Fax 021/6924949.

41
2) Religious freedom of spouses
Each spouse will retain his or her current religion and undertakes to respect
the freedom of religion and worship of the other spouse, including the right
to change religion.
Each of the spouses undertakes to refrain from imposing his or her own
dietary norms upon the other.
3) Fidelity and monogamy
The husband and the wife owe each other support and fidelity. Each of
them attests that he or she is not married to another person at the time of
entering into the present marriage. Each of them undertakes not to marry
another person for so long as the present marriage continues. In case of a
false attestation or violation of this undertaking by either spouse, the other
spouse shall have the right to apply for a divorce on this ground.
4) Children
The husband and the wife affirm that they have submitted to premarital
examinations and have informed each other of the results of these
examinations.
The children's religion will be...............
They will be educated in this religion. They will have the benefit of
religious freedom when they attain the age of sixteen years, including the
right to change religion, without constraint on the part of either parent or of
their respective families, in conformity with article 303, paragraph 3 of the
Swiss Civil Code.
The children will bear European, Christian, Muslim, Arabic, neutral first
names. The choice of the first name will be made by agreement between
the two parents (any mutually acceptable first names of boys or girls may
be mentioned here: ............).
Each of the children will be baptized at the age of...............
The children will be free to choose to be circumcized or excized when they
attain the age of eighteen years, if they so desire.
The children will be educated in public, Muslim, Christian, Jewish schools.
Each of the children will be included on his or her mother's passport.
The Muslim spouse will not oppose any marriage of his or her daughters
with a non-Muslim.
5) Economic relations
Each of the spouses shall contribute on the basis of equality, each
according to his or her respective means, to the expenses of the household
and to the education of the children. They shall jointly decide all matters
affecting the couple.

42
Their matrimonial property rights shall be governed by Swiss law. The
spouses hereby opt for the (please name the chosen matrimonial property
relationship)...............
6) Sartorial norms, work and travel
The husband and the wife each undertake not to impose Islamic norms
concerning clothing, social life, or education (including physical edu-
cation), upon one another or upon their children,.
The wife will determine her own occupational activities. She shall not
require the husband's authorization in order to travel or to obtain trans-
portation tickets and identity documents for herself and for her children.
7) Dissolution of the marriage
The husband and the wife undertake to resolve their differences amicably.
In the event that either spouse should wish to terminate the marriage,
he/she undertakes to initiate judicial proceedings and not to resort to
repudiation.
If the husband or both of the spouses are resident in a jurisdiction which
allows the husband to repudiate his wife, the husband hereby accords his
wife the right to repudiate him under the same conditions.
In case of divorce, the custody of any children of the marriage will be
determined according to Swiss law and by order of a Swiss court. If
children are assigned to the mother, the father undertakes to respect that
decision and not to take them away from her, whatever is their place of
residence. In case of the death of either spouse, custody of the children will
be held by the surviving spouse.
The distribution of assets and payment of any maintenance between the
spouses will be determined according to Swiss law, even if the husband or
both of the spouses reside in a Muslim country.
Assets acquired during the marriage by one or other of the spouses shall be
considered as common property of the two spouses and shall be shared
equally, unless the two spouses have decided otherwise.
8) Inheritance
The husband and the wife hereby choose Swiss law to govern their
successions. They reject any restriction upon the right to inherit which is
based on religion or sex. For the event that the succession is administered
abroad, partially or completely, and that the relevant foreign legal system
prevents the application of Swiss law, each of the spouses hereby makes an
advance testamentary allocation to the surviving spouse of one third of his
net estate after satisfaction of all matrimonial property rights and
obligations.

43
9) Death and funeral ceremony
The spouses have reached the following agreement concerning their
funerals: burial in a secular cemetery, burial in a religious cemetery,
repatriation of mortal remains to the country of origin, cremation, etc.
10) Modification of the present contract
The husband and the wife each commit themselves to respect the terms of
this contract in good faith. The present contract cannot be modified other
than with the free consent of the two spouses, given before a notary.
Name of the husband
His signature place and date.................
Name of the wife
Her signature place and date.................
st
Name and address of the 1 witness
Signature place and date.................
nd
Name and address of the 2 witness
Signature place and date.................
Name and address of the notary
Signature place and date.................
P.S.: In the event that the spouses decide to proceed with a Muslim
religious ceremony after the civil ceremony or to conclude a religious or
consular marriage abroad, it will be indispensable to expressly mention in
the document which evidences that ceremony or marriage:
– that this premarital contract signed by the two spouses before a notary
is an integral part of their agreement to marry, and
– that in case of any discrepancy between the two, the present contract
shall have priority over the document executed by the religious or
consular authority.

44